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ishar Dutt and anr. Vs. Musai Dube and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1915All367; 31Ind.Cas.886
Appellantishar Dutt and anr.
RespondentMusai Dube and ors.
Excerpt:
civil procedure code (act v of 1908), order xli, rule 4 - appeals, separate, by two sets of defendants--appeal by one set, dismissal of--appeal, hearing of, by other set--discretion of court to dismiss suit as against all defendants. - - on the most important issue of fact in the case, an issue which involved the entire title of the plaintiffs to the property in dispute, the learned additional judge who held charge of that office in the month of may 1914, came to a conclusion diametrically opposite to that arrived at by his predecessor in the month of february 1913. finding that the plaintiffs had failed to prove their title to the land in dispute he accepted the appeal of the defendants first party and dismissed the suit altogether. yet the appellate court would have been clearly..........parties, and it was actually arrived at while the question in issue was under adjudication on the appeal filed by them on november 18th, 1912. it was further contended that, in any case, the additional district judge who decided the appeal of the defendants first party ought not to have dismissed the plaintiffs' suit altogether, but should have so framed his decree as to maintain for the plaintiffs the benefit of the dismissal of the appeal brought by the defendants second party. the course taken by this litigation in the lower appellate court was certainly unfortunate and the result arrived at appears anomalous. nevertheless i am not clear that the plaintiffs are entitled to any relief from this court. they are themselves mainly responsible for the curious result of the litigation in.....
Judgment:

Piggott, J.

1. This is an appeal by the plaintiffs in a suit for recovery of possession over immoveable property. In the array of parties originally impleaded there were five defendants of the first party, seven defendants of the second party and one defendant of the third party. Of this last it is sufficient to say that she was alleged to have a joint right with the plaintiffs to the property in suit, and was impleaded because she declined to join in the suit The plaint does not disclose any difference in the position of the defendants first party and the defendants second party except in so far as it alleges that the defendants first party have filed a collusive suit against the defendants second party. On the question of the existing possession over the property in suit the plaint merely says that the possession of the defendants first party and second party is wrongful. The Court of first instance decreed the suit on the 20th of September 1912. Separate appeals were filed by the defendants first party and by the defendants second party. The appeal of the former was filed on the 18th of November 1912 and that of the latter was filed on the 26th of November 1912. This appeal was transferred to the Court of the Additional District Judge of Gorakhpur sitting at Basti and was dismissed by him on the 4th of February 1913. In the meantime the appeal of the defendants first party remained pending, its connection with the other appeal having apparently been overlooked. It was, however, transferred to the Court of the Additional District Judge and was disposed of on the 26th of May 1914 by the successor of the learned Additional District Judge who had dealt with the appeal of the defendants second party. On the most important issue of fact in the case, an issue which involved the entire title of the plaintiffs to the property in dispute, the learned Additional Judge who held charge of that office in the month of May 1914, came to a conclusion diametrically opposite to that arrived at by his predecessor in the month of February 1913. Finding that the plaintiffs had failed to prove their title to the land in dispute he accepted the appeal of the defendants first party and dismissed the suit altogether. The plaintiffs have come to this Court in second appeal. The plea oaken to the effect that the District Judge of Gorakhpur had no jurisdiction to decide the appeal seems to be based on some misapprehension. The plea to the effect that the decision of February 4th, 1913, operates as res judicata against the defendants first party seems to me quite unsustainable. It was a decision to which they were no parties, and it was actually arrived at while the question in issue was under adjudication on the appeal filed by them on November 18th, 1912. It was further contended that, in any case, the Additional District Judge who decided the appeal of the defendants first party ought not to have dismissed the plaintiffs' suit altogether, but should have so framed his decree as to maintain for the plaintiffs the benefit of the dismissal of the appeal brought by the defendants second party. The course taken by this litigation in the lower Appellate Court was certainly unfortunate and the result arrived at appears anomalous. Nevertheless I am not clear that the plaintiffs are entitled to any relief from this Court. They are themselves mainly responsible for the curious result of the litigation in the lower Appellate Court. The defendants first party and the defendants second party had each availed themselves independently of a right undoubtedly secured to them by Order XLI, Rule 4 of the Code of Civil Procedure, that is to say, each set of defendants had appealed from the whole decree, on the ground that the said decree proceeded upon a ground which was common as against all the defendants. There is no necessary presumption that either set of defendants was cognizant of the filing of the 'appeal by the other set. The plaintiffs on the other hand must have received notice of both the appeals, and it was apparently remiss on their part, as it was certainly unfortunate for them, that they did not invite the attention of the Court below to the advisability of hearing both the appeals together. As matters turned out the Additional District Judge who took cognizance in the month of May 1914 of the appeal filed by the defendants first party was possessed of the discretion reserved to a Court of Appeal by Order XLI. Rule 4, above referred to. Having decided against the plaintiffs a point which went to the root of their title, it would certainly have been anomalous for him to so frame his decree as to allow the plaintiffs to claim possession against one set of defendants. If the defendants second party had never filed an appeal at all the decision of the Court of first instance would have become final against them. Yet the Appellate Court would have been clearly entitled to exercise, on the appeal of the defendants first party, the discretion conferred upon it by Order XLI, Rule 4, Civil Procedure Code. There is no provision of law which lays down that this discretion is taken away in the event of an unsuccessful appeal by one defendant or set of defendants, and I do not find myself able to formulate any principle of law which would take away that discretion. The. dismissal of the appeal filed by the defendant's second party in no way affects the principle that the decree of the Court of first instance had not become final against the defendants first party so long as their appeal against the same remained undisposed of on the file of the Additional District Judge of Crorakhpur, and if that decree had not become final it remained subject to the discretion conferred upon an Appellate Court by Order XLI, Rule 4, Civil Procedure Code. This appeal, therefore, fails and is dismissed with costs.


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